9911796707
TMI Blog2025 (1) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over the test report of SB Assaying & Hallmarking Centre, Guwahati certifying the said gold to have fineness ranging from 99.30 to 99.39% (23.84 carat). 3. The appellant failed to produce any licit documents in support of purchase, transportation, possession, importation and in any manner dealing with the said seized gold. However, the appellant produced one blank Tax Invoice. Therefore, gold seized was effected by the Customs officers believing that gold to be of foreign origin on reasonable blame that it has been illegally imported in contravention of Section 7(1)(C ) and 11 of the Customs Act, 1962. The value of the seized Gold is estimated at Rs. 27,90,247/- . Thereafter, statement of the appellant was recorded and a Show Cause Notice was issued to the appellant for absolute confiscation of the said gold. On 29.06.2020, the matter was adjudicated the gold in question was absolutely confiscated and penalty of Rs. 2,80,000/- was imposed on the appellant. 4. On appeal, the order of the Adjudicating Authority was affirmed. Against the said order, the appellant is before me. 5. The Ld. Counsel for the appellant submits that the appellant is having a jewellery business in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand Ld Authorized Representative submitted that as the appellant could not produce ilicit document for procurement of the gold, in that circumstances, it is a reasonable believe that gold is of foreign origin, therefore, the same was seized. 8. Heard both sides. Considered the submissions. 9. I find that it is a case of town seizure wherein the purity of gold was found 99.30% to 99.39 % and having no foreign marking thereon and are of irregular shape, size and weight. In that circumstances, can there be a reasonable believe to confiscate that the gold in question or not. 10. The said issue has been dealt by this Tribunal in the case of Bajrang Ingole wherein this Tribunal has observed as under: "17. On going through the facts of the case, as it is a case of town seizure, where no marking is embossed on the gold which is coming out from the seizure memo itself that there is e Swastika symbol and purity is only 99.5%, in that circumstances, the question arises how the reasonable belief has been found to form the opinion that the gold in question is smuggled one. 18. To decide the issue this Tribunal in the case of Shri Balwant Raj Soni & Others v. Commissioner of Customs ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner claimed that they belonged to the queen mother of Nepal. A letter was written to queen mother. On her behalf a reply was received that she had given certain ornaments to the petitioner for polishing, remaking etc., though not for sale. But this was done later on. The letter was written on 3-7-1967. The reply was received on 24-7-1967. But at the time of seizure all that the officer had before him were 2 packets of diamonds and 5 ornaments. Neither the diamonds nor the ornaments had any foreign markings or label to suggest to the customs that these were smuggled goods. In the search list these two packets of diamonds are described as "appearing to be diamonds". This shows that the customs officer did not believe them to be diamonds on any reasonable ground. The ornaments had no foreign label or making. They were ordinary ornaments as are worn in this country. There was nothing peculiar about them. Nothing extraordinary. On this material could any reasonable man entertain a belief that these were smuggled goods 59. The belief must be such as any reasonable man in the circumstances of the case would entertain about the existence or non-existence of a thing. Simply bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as the goods had not been accounted for these are smuggled goods. At the time of seizure what happened was this. The petitioner was present at the shop. He told the customs officer that they were duly entered in his account books but his accountant had gone to the income tax officer. The officer did not wait for the man to arrive to explain the entries to him. He seized the goods and took them away. This was not a case of reasonable belief. It was a case of suspicion. A case of speculation. A case of guess work. 63. As a result Section 123 did not apply to the case. There was no reasonable belief. No presumption could be raised under section 123. There was no obligation on the petitioner to prove that the goods were not smuggled. The burden of proof was wrongly cast on him. The entire inquiry was vitiated." 20. From the above discussion, we observe that the 'reasonable belief on which the DRI officers presumed that the gold bars/pieces were of smuggled nature is not supported by any corroborative evidence. There is no document available on record to establish that gold bars/pieces were smuggled into India from Bangladesh. The impugned order has concluded that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be open for the Court to examine the same, though sufficiency of the reasons for the belief cannot be investigated. 12.3 In view of the above, we observe that to form a 'reasonable belief that the goods are smuggled into India, there must be irrefutable evidence to prove that allegation. In the present case there is no such evidence available to prove that the goods were of foreign origin and smuggled into India. In this case we find that the gold was seized at the outskirts of Imphal which is far away from Indo-Myanmar border. Thus, there must be some other corroborative evidence available to have the reasonable belief that the gold is of smuggled in nature." 12. Admittedly the facts of the case are similar to the case of R.K.Swami Singh (Supra) and Bajrang Ingole (Supra). 13. As it is a case of town seizure having no foreign marking on the gold and gold is of different shape, size and weight and purity of 99.30% to 99.39%, in that circumstances, the gold in question cannot be absolutely confiscated. Therefore, the conditions of Section 110 for seizure of gold are not complied with as there is no reasonable believe that the gold in question is of foreign origin. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
